1. Except as provided in paragraphs 2 and 3, and provided that six months have elapsed since the events giving rise to a claim, a disputing investor may submit the claim to arbitration under:
(a) the ICSID Convention, provided that both the disputing Party and the Party of the investor are parties to the Convention;
(b) the Additional Facility Rules of ICSID, provided that either the disputing Party or the Party of the investor, but not both, is a party to the ICSID Convention; or
(c) the UNCITRAL Arbitration Rules.
2. Where a claim is submitted under Article 9-17, the investor and the enterprise that is a juridical person owned or controlled directly or indirectly by the investor shall have not submitted the same claim to a court or administrative tribunal of the disputing party.
3. Where a claim is submitted under Article 9-18, both the investor and the enterprise that is a juridical person owned or controlled directly or indirectly by the investor, shall have not submitted the same claim to a court or administrative tribunal of the disputing Party.
4. The applicable arbitration rules shall govern the arbitration except to the extent modified by this Section.
Article 9-22. Conditions Precedent to Submission of a Claim to Arbitration
1. A disputing investor may submit a claim under Article 9-17 to arbitration only if:
(a) the investor consents to arbitration in accordance with the procedures set out in this Agreement; and
(b) the investor and, where the claim is for loss or damage to an interest in an enterprise of the other Party that is a juridical person that the investor owns or controls directly or indirectly, the enterprise, waive their right to initiate or continue before any administrative tribunal or court under the law of the disputing Party, or other dispute settlement procedures, any proceedings with respect to the measure of the disputing Party that is alleged to be a breach referred to in Article 9-17, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the law of the disputing Party.
2. A disputing investor may submit a claim under Article 9-18 to arbitration only if both the investor and the enterprise:
(a) consent to arbitration in accordance with the procedures set out in this Agreement; and
(b) waive their right to initiate or continue before any administrative tribunal or court under the law of a Party, or other dispute settlement procedures, any proceedings with respect to the measure of the disputing Party that is alleged to be a breach referred to in Article 9- 18, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the law of the disputing Party.
3. A consent and waiver required by this Article shall be in writing, shall be delivered to the disputing Party and shall be included in the submission of a claim to arbitration.
4. Only where a disputing Party has deprived a disputing investor of control of an enterprise:
(a) a waiver from the enterprise under paragraph 1(b) or 2(b) shall not be required; and
(b) Annex 9-21(3) shall not apply.
Article 9-23. Consent to Arbitration
1. Each Party consents to the submission of aclaim to arbitration in accordance with the procedures set out in this Agreement.
2. The consent given by paragraph 1 and the submission by a disputing investor of a claim to arbitration shall satisfy the requirement of:
(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the Additional Facility Rules for written consent of the parties;
(b) Article Il of the New York Convention for an agreement in writing; and
(c) Article I of the Inter-American Convention for an agreement.
Article 9-24. Number of Arbitrators and Method of Appointment
Except in respect of a Tribunal established under Article 9-27, and unless the disputing parties otherwise agree, the Tribunal shall comprise three arbitrators, one arbitrator appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, appointed by agreement of the disputing parties.
Article 9-25. Constitution of a Tribunal When a Party Fails to Appoint an Arbitrator or the Disputing Parties Are Unable to Agree on a Presiding Arbitrator
1. The Secretary-General shall serve as appointing authority for an arbitration under this Section.
2. If a Tribunal, other than a Tribunal established under Article 9-27, has not been constituted within 90 days from the date that a claim is submitted to arbitration, the Secretary-General, on the request of either disputing party, shall appoint, in his discretion, the arbitrator or arbitrators not yet appointed, except that the presiding arbitrator shall be appointed in accordance with paragraph 3.
3. The Secretary-General shall appoint the presiding arbitrator from the roster of presiding arbitrators referred to in paragraph 4, provided that the presiding arbitrator shall not be a national of a Party. In the event that no such presiding arbitrator is available to serve, the Secretary-General shall appoint, from the ICSID Panel of Arbitrators, a presiding arbitrator who is not a national of either of the Parties.
4. On the date of entry into force of this Agreement, the Parties shall establish, and thereafter maintain, a roster of 30 presiding arbitrators meeting the qualifications of the Convention and rules referred to in Article 9-21 and experienced in international law and investment matters. The roster members shall be appointed by mutual agreement.
Article 9-26. Agreement to Appointment of Arbitrators
For purposes of Article 39 of the ICSID Convention and Article 7 of Schedule C to the ICSID Additional Facility Rules, and without prejudice to an objection to an arbitrator based on Article 9-25(3) or on a ground other than nationality:
(a) the disputing Party agrees to the appointment of each individual member of a Tribunal established under the ICSID Convention or the ICSID Additional Facility Rules;
(b) a disputing investor referred to in Article 9-17 may submit a claim to arbitration, or continue a claim, under the ICSID Convention or the ICSID Additional Facility Rules, only on condition that the disputing investor agrees in writing to the appointment of each individual member of the Tribunal; and
(c) a disputing investor referred to in Article 9-18(1} may submit aclaim to arbitration, or continue a claim, under the ICSID Convention or the ICSID Additional Facility Rules, only on condition that the disputing investor and the enterprise agree in writing to the appointment of each individual member of the Tribunal.
Article 9-27. Consolidation
1. A Tribunal established under this Article shall be established under the UNCITRAL Arbitration Rules and shall conduct its proceedings in accordance with those Rules, except as modified by this Section.
2. Where a Tribunal established under this Article is satisfied that claims have been submitted to arbitration under Article 9-21 that have a question of law or fact in common, the Tribunal may, in the interests of fair and efficient resolution of the claims, and after hearing the disputing parties, by order, assume jurisdiction over, and hear and determine:
(a) all or part of the claims together; or
(b) one or more of the claims, the determination of which it believes would assist in the resolution of the others.
3. A disputing party that seeks an order under paragraph 2 shall request the Secretary-General to establish a Tribunal and shall specify in the request:
(a) the name of the disputing Party or disputing investors against which the order is sought;
(b) the nature of the order sought; and (c) the grounds on which the order is sought.
4. The disputing party shall deliver to the disputing Party or disputing investors against which the order is sought a copy of the request.
5. Within 60 days of receipt of the request, the Secretary-General shall establish a Tribunal comprising three arbitrators. The Secretary-General shall appoint the presiding arbitrator from the roster referred to in Article 9-25(4). Inthe event that no such presiding arbitrator is available to serve, the Secretary-General shall appoint, from the ICSID Panel of Arbitrators, a presiding arbitrator who is not a national of either Party. The Secretary-General shall appoint the two other members from the roster referred to in Article 9-25(4), and to the extent not available from that roster, from the ICSID Panel of Arbitrators, and to the extent not available from that Panel, in the discretion of the Secretary-General. One member shall be a national of the disputing Party and one member shall be a national of the Party of the disputing investors.
6. Where a Tribunal has been established under this Article, a disputing investor that has submitted a claim to arbitration under Article 9-17 or 9-18 and that has not been named in a request made under paragraph 3 may make a written request to the Tribunal that it be included in an order made under paragraph 2, and shall specify in the request:
(a) the name and address of the disputing investor;
(b) the nature of the order sought; and
(c) the grounds on which the order is sought.
7. A disputing investor referred to in paragraph 6 shall deliver a copy of its request to the disputing parties named in a request made under paragraph 3.
8. A Tribunal established under Article 9-21 shall not have jurisdiction to decide aclaim, or a part of a claim, over which a Tribunal established under this Article has assumed jurisdiction.
9. On application of a disputing party, a Tribunal established under this Article, pending its decision under paragraph 2, may order that the proceedings of a Tribunal established under Article 9-21 be stayed, unless the latter Tribunal has already adjourned its proceedings.
Article 9-28. Notice
1. A disputing Party shall deliver to the Secretariat, within 15 days of receipt by the disputing Party, a copy of:
(a) a request for arbitration made under paragraph (1) of Article 36 of the ICSID Convention;
(b) a notice of arbitration made under Article 2 of Schedule C of the ICSID Additional Facility Rules; or
(c) a notice of arbitration given under the UNCITRAL Arbitration Rules.
2. A disputing Party shall deliver to the Secretariat a copy of a request made under Article 9-27(3):
(a) within 15 days of receipt of the request, in the case of a request made by a disputing investor; and
(b) within 15 days of making the request, in the case of a request made by the disputing Party.
3. A disputing Party shall deliver to the Secretariat a copy of a request made under Article 9-27(6) within 15 days of receipt of the request.
4. The Secretariat shall maintain a public register of the documents referred to in paragraphs 1, 2 and 3.
5. A disputing Party shall deliver to the other Party:
(a) written notice of a claim that has been submitted to arbitration no later than 30 days after the date that the claim is submitted; and
(b) copies of all pleadings filed in the arbitration.
Article 9-29. Participation by a Party
On written notice to the disputing parties, a Party may make submissions to a Tribunal on a question of interpretation of this Agreement.
Article 9-30. Documents
1. A Party shall be entitled to receive from the disputing Party, at the cost of the requesting Party, a copy of:
(a) the evidence that has been tendered to the Tribunal; and
(b) the written argument of the disputing parties.
2. A Party receiving information pursuant to paragraph 1 shall treat the information as if it were a disputing Party.
Article 9-31. Place of Arbitration
Unless the disputing parties agree otherwise, a Tribunal shall hold an arbitration in the territory of a Party that is a party to the New York Convention, selected in accordance with:
(a) the ICSID Additional Facility Rules if the arbitration is under those Rules or the ICSID Convention; or
(b) the UNCITRAL Arbitration Rules if the arbitration is under those Rules.
Article 9-32. Governing Law
1. A Tribunal established under this Section shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law.
2. An interpretation by the Commission of a provision of this Agreement shall be binding on a Tribunal established under this Section.
Article 9-33. Interpretation of Annexes
1. Where a disputing Party asserts as a defence that the measure alleged to be a breach is within the scope of a reservation or exception set out in Annex I, Annex II, Annex Ill or Annex IV, on request of the disputing Party, the Tribunal shall request the interpretation of the Commission on the issue. The Commission, within 60 days of delivery of the request, shall submit in writing its interpretation to the Tribunal.
2. Further to Article 9-32(2}, a Commission interpretation submitted under paragraph 1 shall be binding on the Tribunal. If the Commission fails to submit an interpretation within 60 days, the Tribunal shall decide the issue.
Article 9-34. Expert Reports
Without prejudice to the appointment of other kinds of experts where authorized by the applicable arbitration rules, a Tribunal, at the request of a disputing party or, unless the disputing parties disapprove, on its own initiative, may appoint one or more experts to report to it in writing on any factual issue concerning environmental, health, safety or other scientific matters raised by a disputing party in a proceeding, subject to such terms and conditions as the disputing parties may agree.
Article 9-35. Interim Measures of Protection
A Tribunal may order an interim measure of protection to preserve the rights of a disputing party, or to ensure that the Tribunal's jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the Tribunalâs jurisdiction. A Tribunal may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 9-17 or 9-18. For purposes of this Article, an order includes a recommendation.
Article 9-37. Final Award
1. Where a Tribunal makes a final award against a Party, the Tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest;
(b) restitution of property, in which case the award shall provide that the disputing Party may pay monetary damages and any applicable interest in lieu of restitution.
2. A Tribunal may also award costs in accordance with the applicable arbitration rules.
3. Subject to paragraphs 1 and 2, where aclaim is made under Article 9-18(1):
(a) an award of restitution of property shall provide that restitution be made to the enterprise;
(b) an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise; and
(c) the award shall provide that it is made without prejudice to any right that any person may have in the relief under applicable domestic law.
4. A Tribunal may not order a Party to pay punitive damages.
Article 9-37. Finality and Enforcement of an Award
1. An award made by a Tribunal shall have no binding force except between the disputing parties and in respect of the particular case.
2. Subject to paragraph 3 and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay.
3. A disputing party may not seek enforcement of a final award until:
(a) in the case of a final award made under the ICSID Convention:
(i) 120 days have elapsed from the date the award was rendered and no disputing party has requested revision or annulment of the award, or
(ii) revision or annulment proceedings have been completed; or
(b) in the case of a final award under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules:
(i) three months have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside or annul the award, or
(ii) a court has dismissed or allowed an application to revise, set aside or annul the award and there is no further appeal.
4. Each Party shall provide for the enforcement of an award in its territory.
5. If a disputing Party fails to abide by or comply with a final award, the Commission, on delivery of a request by a Party whose investor was a party to the arbitration, shall establish a panel under Article 18-06 (Request for an Arbitral Panel). The requesting Party may seek in such proceedings:
(a) a determination that the failure to abide by or comply with the final award is inconsistent with the obligations of this Agreement; and
(b) a recommendation that the Party abide by or comply with the final award.
6. A disputing investor may seek enforcement of an arbitration award under the ICSID Convention, the New York Convention or the Inter-American Convention regardless of whether proceedings have been taken under paragraph 5.
7. Aclaim that is submitted to arbitration under this Section shall be considered to arise out of a commercial relationship or transaction for purposes of Article I of the New York Convention and Article I of the Inter-American Convention.
Article 9-38. Time When a Claim Is Submitted to Arbitration
General
1. A claim is submitted to arbitration under this Section when:
(a) the request for arbitration under paragraph 1 of Article 36 of the ICSID Convention has been received by the Secretary-General;
(b) the notice of arbitration under Article 2 of Schedule C of the ICSID Additional Facility Rules has been received by the Secretary-General; or
(c) the notice of arbitration given under the UNCITRAL Arbitration Rules has been received by the disputing Party.
Service of Documents
2. Delivery of notice and other documents on a Party shall be made to the place named for that Party in Annex 9-38(2).
Receipts under Insurance or Guarantee Contracts
3. In an arbitration under this Section, a Party shall not assert, as a defence, counterclaim, right of setoff or otherwise, that the disputing investor has received or will receive, pursuant to an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages.
Publication of an Award
4. Annex 9-38(4) applies to publication of an award.
Article 9-39. Exclusions
1. Without prejudice to the applicability or non-applicability of the dispute settlement provisions of this Section or of Chapter 18 (Dispute Settlement) to other actions taken by a Party pursuant to Article 19-03 (National Security), a decision by a Party to prohibit or restrict the acquisition of an investment in its territory by an investor of the other Party, or its investment pursuant to that Article, shall not be subject to such provisions.
2. The dispute settlement provisions of this Section and of Chapter 18 (Dispute Settlement) shall not apply to the matters referred to in Annex 9-39.
Section D. Committee on Investment and Cross-Border Trade In Services
Article 9-40. Committee on Investment and Cross-Border Trade In Services
1. The Parties establish a Committee on Investment and Cross-Border Trade in Services comprising representatives of each Party, in accordance with Annex 9-40.
2. The Committee shall convene at least once a year and whenever so requested by either Party or the Commission.
3. The Committee's functions shall include:
(a) monitoring the implementation and administration of this Chapter and of Chapter 10 (Cross-Border Trade in Services);
(b) discussing matters relating to cross-border services and bilateral investments; and
(c) examining bilaterally issues related to these matters discussed in other international fora.
Chapter 10. CROSS-BORDER TRADE IN SERVICES
Article 10-01. Definitions
1. For the purposes of this Chapter:
cross-border provision of a service or cross-border trade in services means the provision of a service:
(a) from the territory of a Party into the territory of the other Party;
(b) in the territory of a Party by a person of that Party to a person of the other Party; or
(c) by a national of a Party in the territory of the other Party,
but does not include the provision of a service in the territory of a Party by an investment, as defined in Article 9-01 (Definitions), in that territory;
enterprise means an "enterprise" as defined in Article 2-01 (Definitions of General Application), and a branch of an enterprise;
enterprise of a Party means an enterprise constituted or organized under the law of a Party, and a branch located in the territory of a Party and carrying out business activities there;
existing means in effect on 14 January 1997;
professional services means services, the provision of which requires specialized post-secondary education, or equivalent training or experience, and for which the right to practice is granted or restricted by a Party, but does not include services provided by trades-persons or vessel and aircraft crew members;
quantitative restriction means a non-discriminatory measure that imposes
limitations on: